Month: January 2016

Sonny Bonacio seems to have become the celebrity developer. Unfortunately, for Sonny, the coverage is not always favorable.

Mr. Bonacio, in a joint project with Roohan Realty, built a super expensive set of condos at 268 Broadway immediately adjacent to Congress Park. Rumor has it that one of the tenants is a sheik from the Middle East.

268 Broadway

Apparently, when the structure was built, it encroached onto city owned land including Congress Park. There apparently were two different encroachments that will now require post facto easements or changes in what occupies the land.

Dennis Yusko broke the two stories on this and I include them with this post. I am just adding a few items to help fill in the stories further.

Transformer LocationNational Grid Transformer (Doesn’t look like it is underground)View Of Park From Tranformer

One of the problems has to do with a large transformer that was required to provide electricity to the Bonacio structure. At a City Council meeting sometime in 2006, Commissioner Thomas McTygue asked for an easement for the transformer. In the brief discussion it was presented as a request from National Grid to place it “underground.” Mr. McTygue remembers it as a request by National Grid to replace a power pole. It passed the Council unanimously. As it happens, National Grid placed it on top of a slab on property that was part of our park which is under the New York State Parks and so required approval from the New York State Legislature.

Walkway and PatioView of Canfield Casino From PatioView Of Canfield Casino From Walkway

The other piece of land involves a patio and walkway adjacent to the Bonacio building that encroaches on city land. There was no request by Bonacio and Roohan for an easement and none was issued.

It is important to note that in the Planning Board minutes back on September 13, 2006 they record that “Sonny Bonacio said there would be no penetration to the park but there would be glass there.”

At another point in the same meeting “Amy Durland asked where the park actually was on the site plan. Sonny Bonacio showed the board the property line. Amy Durland asked if the proposal currently went into the park. Mike Ingersoll [Bonacio’s architect with the L.A. Group] clarified that the project is only on their property.”

More recently, after the issue of the apparent infringement arose, Kieth Ferrar, Bonacio’s attorney claimed that a hand written deed they had was the basis of their claim to the land now in dispute. It is noted in the minutes of the meeting that “Keith provided a deed from 1892 (which is very difficult to read)…”

I would say that hard to read is something of an understatement.

Deed Page #1Deed Page #2

More recently in April of 2015, when the City’s Realty Board began to try to untangle this mess, in a rare moment of candor, Keith Ferarra, attorney for Bonacio is quoted in the minutes as follows: “Keith Ferrara was asked how the easement came to be and he responded saying ‘Just did it, ask for forgiveness, Let’s see how it turns out.’” Later, Mr. Ferrara said he could not remember saying this.

Bonacio Construction has requested an easement from the city on a piece of Congress Park that the company may have encroached upon while building its Park Place condominium project, according to city records.

The company recently applied for access rights to an approximately 300-foot by 25-foot piece of city-owned parkland behind 268 Broadway, where it built a concrete patio and walkways, city officials said. The Saratoga Springs Real Estate Board is reviewing the easement request, which Bonacio Construction recently submitted after completing work on the six-story, 215,000-square-foot complex, according to Mayor Joanne Yepsen.

“They may need an easement to approve walkways and landscaping they did on park property,” Yepsen said when asked about it.

Congress Park is listed on the National Registry of Historic Places, and the City Council and state Legislature could make the final decisions on Bonacio’s land-use request, the mayor said. The Park Place building itself does not infringe on public land, according to city officials.

Bonacio Construction received city approvals to build the residential and commercial project along Congress Park and Broadway in 2006. Now, nine years later, questions about an easement — a legal right to use someone else’s land — have surfaced.

“After reviewing the plans, there is considerable property involved, and more investigation is needed to determine what the impact is,” Real Estate Board members said of the easement request, according to minutes from its March 5 meeting.

At the board’s next monthly meeting on April 2, Keith Ferrara, chief operations officer for Bonacio Construction, suggested that a 123-year-old property deed handed down from a previous landowner included an easement to build on the piece of Congress Park.

However, according to minutes of the meeting, when he was asked how the easement on Congress Park came to be, Ferrara had responded, “Just did it, ask forgiveness — let’s see how it turns out.”

Reached by phone last week, Ferrara said he didn’t remember saying it that way and said he thought the company’s work on a “unusable” portion of the park was permitted through the 1892 deed.

Bonacio Construction is not offering money or land in return for the easement, Ferrara said. “This is just taking a 100-something-year-old easement and cleaning it up,” he said.

The Real Estate Board, a little-known advisory committee, is chaired by City Attorney Vince DeLeonardis. Other voting members are Kameron Klippel, the city’s receiver of taxes, Brad Birge, administrator of planning and economic development, Tony Popolizio, the assistant assessor, and city police Officer Kevin Veitch.

DeLeonardis said the old property deed was handwritten and difficult to read, and the Real Estate Board must investigate if the document authorized the company to use parkland, or if additional approvals were necessary. The board is also looking into an anonymous claim that a city official or officials verbally approved an easement at the construction site years ago, DeLeonardis said.

“Right now we are in the preliminary stages of finding facts,” DeLeonardis said. “It’s important to note parkland is impressed with the public trust for the benefit of the people and state, and the use of land for anything other than park purposes requires approval of the state Legislature.”

Asked why the project never received state approvals, he said, “That’s a good question, and we’re looking into that now.”

The city approved Park Place in 2006. The Planning Board voted to allow the Design Review Commission to serve as lead agency in an environmental review process. The commission decided the project would not have a negative environmental impact on the surrounding area, but required the company to hire an archaeologist to monitor excavation of the site, according to city records. The project changed slightly as it evolved, DeLeonardis said. “Right now, we really have more questions than answers,” he said.

The Real Estate Board is expected to continue to discuss the easement application at its next meeting on May 7.

Bonacio’s project extended into Congress Park, Saratoga officials say

Areas of condo site violate boundaries of park, city land

By Dennis Yusko

Published 7:49 pm, Thursday, January 21, 2016

Saratoga Springs

Bonacio Construction encroached on state parkland and city property with a six-story condominium project it built along Broadway and Congress Park, and the city may need action from the state Legislature to correct part of the problem, city officials said.

A recently completed land survey determined the construction company built on taxpayer-owned land behind the 215,000-square-foot Park Place building, and a National Grid transformer that serves the building sits on a small section of bordering Congress Park, which is owned by the state, Public Works Commissioner Anthony Scirocco announced at Tuesday’s City Council meeting.

Further review of the project, which the city approved in 2006, revealed the City Council voted in 2007 to provide National Grid an easement to build the utility transformer behind the condominiums, City Attorney Vince DeLeonardis said. The city granted the easement for $1, according to a copy of the agreement, on land that it doesn’t own, according to Scirocco.

“There’s no way the City Council can grant an easement,” Scirocco said Tuesday. “The only way the easement can be granted is through the state Legislature because it’s state historic property.”

What land was used to complete Park Place became an issue last year, when the city engineer’s office noted potential land encroachments behind the building while reviewing final as-built drawings for the project. Bonacio Construction then requested an easement from the city on an approximately 300-by 25-foot piece of city-owned land behind 268 Broadway, where it built a patio and walkways as part of Park Place, according to city officials.

Scirocco had a land survey of the area completed to delineate exact boundaries. Performed by Environmental Design Partnership, the study found small segments of Park Place intruded on parts of city and state land, DeLeonardis said. He gave two examples: the National Grid transformer and a fenced-in picnic and barbecue area that was built on city property between the Palio and Holiday Inn buildings.

The Park Place building itself does not infringe on public land, DeLeonardis said. He said there had been some confusion over the park’s boundaries because the Broadway portion of a wrought-iron fence that surrounds the park and is thought to denote property lines was removed years ago, possibly during a major fire. City officials reviewed a number of old maps, documents and deeds to determine boundary lines with the help of Bonacio employees, DeLeonardis said.

The Saratoga Springs Real Estate Board was reviewing Bonacio requests for easements on city land that was used. But Congress Park is listed on the National Registry of Historic Places, and using it for anything other than park purposes requires approval of the state Legislature. The city is potentially looking at having to get authority from the state to allow the National Grid transformer to remain on Congress Park, or undertaking efforts to relocate the station, DeLeonardis said.

National Grid spokesman Patrick Stella said the company was open to moving the structure. A spokesperson for Bonacio Construction could not be reached.

Regarding the Hospital PUD Amendment: I did indicate at the last Council Meeting that I was moving toward bringing the Hospital PUD Amendment forward to the three remaining Commissioners for a Discussion and Vote. However, at this time, I find that we do not have accurate updated language for the PUD Amendment and until we receive accurate language from the City Attorney, City Planning Department, and the Applicant I cannot bring this forward to the Council for a Vote. My office has been working diligently to address this for the past two weeks, but there are still some inaccuracies in the legislation that require input form the City Planning Dept. so the legislation is not yet complete.

Additionally, it has come to my attention that a petition has been filed by residences in opposition of the Hospital PUD Amendment, but I have not officially received the formal petition and therefore have not had a chance to review the petition.

I plan to add a Discussion item to my agenda on Monday morning at the City Council Pre-Agenda Meeting and hope to gather more information so I may fully inform the public as to the status of the Saratoga Hospital PUD Amendment.

On Friday afternoon, January 29, 2016, attorney Andy Brick, acting on behalf of the residents of Morgan St., Myrtle St., Seward St, Woodlawn Ct., and much of Birch Run filed a protest petition at Saratoga City Hall requiring the City Council to pass the Hospital-requested proposed rezoning legislation with a super majority, or 4 out of 5 votes. Normally legislation would be passed with a Council majority of 3 out of 5 votes. Saratoga Hospital would like to expand it’s PUD into the residential area of the Northern part of Morgan St. The neighborhood would like to keep this area zoned residential.

The Protest Petition City Ordinance Section (10.2.8.1) is a mechanism residents can use when they do not want to see rezoning happen in their neighborhood. If a petition is filed, 4 affirmative votes are needed to pass the rezone.

“The residents not only provided enough signatures, but they also provided signatures from just about the entire residential neighborhood,” stated Andy Brick, attorney representing the residents. He continued, “We have not only met the criteria in order to force a super majority vote by City Council, but we surpassed it.”

Because two members of the City Council have officially recused themselves, citing conflicts of interest, the City Council only has 3 possible votes and therefore is unable to obtain the 4 votes necessary to pass the rezoning legislation needed in order for the Hospital to expand into the residential neighborhood.

“This is a case of David beating Goliath,” said Jack Despart, Morgan St. resident. He continued, “When we first heard of this expansion, everyone told us we couldn’t win, the Hospital has too many resources and connections, and we didn’t have a chance. But, we came together as a neighborhood and a community and it worked. I’m so proud of our neighbors, each and every one of them.”

Despart further explained, “We all want the best for the Hospital and the community but we honestly feel the Hospital failed to recognize the rights of its neighbors and that makes many of us very disappointed. There are several other alternatives already situated within commercial zoning and within a close proximity to the Hospital, which were never properly explored.”

I decided to follow-up on the recent Times Union article that focused on Tom Lewis, member of the Saratoga Springs Planning Board, and William Moore, chair of the Saratoga Springs Zoning Board of Appeals regarding issues of recusal.

I contacted the chair of the city’s Ethics Board to better understand what the standards for recusal are for Saratoga Springs land use board members.

Justin Hogan is the Ethics Board chair. Here is a link to his biography from the website of J Strategies Link To Bio where he is employed. J Strategies appears to be a hybrid public relations/lobbying/media consulting firm. For a number of years Mr. Hogan worked for the New York Senate “members’ services” office. Both the Democratic New York State Assembly and the Republican dominated Senate have these offices. It is common knowledge that these two offices basically are political operations meant to help elect the members. They sail very close to the wind so to speak. Mr. Hogan was also the political director for Republican Jeanine Pirro’s 2006 failed campaign for Attorney General. Back in 2004 he was field director for the Bush/Cheney campaign in West Virginia and the head of media operations for the Republican convention that year. Most recently, and before taking his current job, he was Director of Development for the Rockefeller College of Public Affairs & Policy at the University at Albany.

Lest my Republican friends think I am going after them, J Strategies president, Jaime Venditti was an analyst for Democratic Speaker Sheldon Silver. Following that she was “the Vice President of a Central New York government affairs firm where she oversaw the management of all clients. Jaime was responsible for all client media campaigns ranging from media tours, event planning, press conferences, editorial boards, and media placement. In addition, she managed the firm’s lobbying, legislative affairs and public relations efforts for many of the firm’s corporate and not-for-profit clients.”

There is nothing partisan about J Strategies…

Mr. Hogan was originally appointed as chair of the Ethics Board by Mayor Scott Johnson in 2009. Most recently he was reappointed by Mayor Joanne Yepsen.

On Wednesday, January 27 I spoke with Mr. Hogan on the phone. As you might expect he is quite affable but trying to clarify the city’s ethics codes was something of a challenge. I was able to clarify a very few things. First, the Ethics Board’s opinions are only advice. The board has no enforcement authority. Second, they have subpoena power but it has never been used.

When I tried to clarify if there were circumstances in which the appearance of a lack of impartiality would require recusal I found myself in a verbal maze with Mr. Hogan. When I raised the question about whether a board member would have to recuse themselves if their best friend appeared before them, he responded about how it is a small town and everyone knows everyone, and in the famous words of Jerry Seinfeld: yada yada yada. So I asked him what he would do if he were on a board and his best friend came before that board. I never could get an answer. As for the issue of Tom Lewis, his house that Sonny Bonacio is building, and Bonacio’s appearances before the board that Lewis is on, Mr. Hogan’s first response was that we lacked the facts. I pointed out that it was unlikely that we would be able to determine whether Bonacio had done anything special for Mr. Lewis. I also noted to him, as proof of the “appearance” of a potential lack of impartiality, the front page story in the Times Union. He then indicated that the only way he would answer that question was if it was formally submitted to the Ethics Board.

So Wednesday, January 27th I formally submitted the appropriate inquiry form to his board regarding Tom Lewis and William Moore. This will at least clarify for me and for the public whether these cases involving Lewis’ and Moore’s refusal to recuse themselves have violated the city’s ethic code.

Subsequent to our conversation I received the following email from Mr. Hogan:

From: Justin Hogan [justahogan@yahoo.com]

Sent: Wednesday, January 27, 2016 2:06 PM

To: John Kaufmann

Subject: Re: Board of Ethics

Mr. Kaufmann,

To follow up on your question regarding the code of ethics and the conduct of City employees and officers please see section 13-3 B. (d), http://www.saratoga-springs.org/DocumentCenter/Home/View/3948. I have also pasted the section below. Please let

me know if there is any further information I can provide or if you have any more general

questions about the ethics board and procedures.

Sincerely,

Justin

(d) The foregoing City officers and employees are listed due to the unique nature of their offices and positions which, in turn, raise ethical conflicts unique to those offices and positions. This list is not to be deemed all-inclusive. Every City officer and employee shall endeavor to pursue a course of conduct consistent with the spirit of this Chapter as well as the actual provisions and strive to act so as not to raise suspicion among the public that he or she is likely [my emphasis] to be engaged in activities that are in violation of his or her trust.

====================================================================

The standard seems to be that one must show that the person is “likely to be engaged in activities that are in violation of his or her trust.” Proving “likely” would seem to be an unnecessarily high hurdle to get over.

I know that it is difficult to draw the line at what point one’s closeness to another person becomes a problem. I am reminded of the problem the legal community had in dealing with the outlawing of pornography. I know that one wag put it well when they said, “I do not know how to define pornography but I know it when I see it.” I would say the same about the appearance of a lack of impartiality.

[Some readers had problems navigating the Saratogian and asked that I post the story]

Zoning Board chair’s home project questioned

Neighbor: ‘violation is an abuse of power, disregard of the authority of the board’

By Jennie Grey, The Saratogian

Wednesday, January 27, 2016

SARATOGA SPRINGS >> When the chair of a land-use board comes before that very board with an application of his own, the other members are left to sort out any issues and make a fair evaluation. Lately, that’s been challenging for the Saratoga Springs Zoning Board of Appeals (ZBA), since its chair, William Moore, has sought an area variance modification for the home office above his detached garage.

Some neighbors have approved, and some have objected, as seen at the board’s Jan. 25 meeting, when Moore’s application came before the members.

Moore’s house and garage are located at 75 South Franklin St. in the Urban Residential-3 District. He uses the finished space on the second floor of his garage for his business, The Appraisal Company, of which he is president. Having hired one employee, an assistant who works out of the space where Moore applied to modify his variance.

Vice Chair Keith Kaplan presided over this agenda item when Moore recused himself. Moore stepped out into the hall to let the other board members have discussions and make decisions without his presence.

ZBA member Susan Steer questioned whether having a home occupation, such as this business office, was permitted in an accessory structure like a garage. Kaplan read aloud the requirements a home business must fulfill when using space in an accessory building: only 15 percent of the structure can be used as business space; only the home’s occupants and one other person can work there; the sole employee working at that location may use the space; No more than 10 trips to the home office can be made daily by customers; onsite parking for the one employee must be provided; just one exterior wall sign is permitted; and no outdoor storage is allowed.

“So, habitable space would be permitted over the garage,” Kaplan said. “It would be a work space. Business or professional office facilities, workshops and studios are all allowed.”

The original 2013 variance’s language said no kitchen or bathroom facilities, and no overnight stays. Moore did install water and sewer lines, and build a half-bath, which drew the notice of a neighbor.

Anthony Dawson, chief executive officer of Moto Holdings, which owns property located at 77 South Franklin St., has objected to Moore’s building.

In an email to the Saratogian, Dawson wrote, “The ZBA granted conditional approval; conditions were crystal-clear in regards to the accessory building: no kitchen or bathroom — put another way, no water or sewer connection; and then no overnight stays.”

Dawson said that shortly after the final inspection was done and the certificate of occupancy was issued, Moore engaged contractors to install water lines, connect to sewer and finish the interior walls of the garage. Moore then relocated his business to that location.

“In the beginning of December 2015, I put city officials on notice,” Dawson wrote. “No action was taken; instead, I received a notice for the public meeting regarding Moore’s application.”

Moore wrote to the Saratogian also pointing out, “I got my original variance for the following: one foot on the side back requirements and a 3 percent increase in square footage in the accessory building (the garage). I also applied to have finished space over my garage, which would include a half bath, and no shower and no kitchen, and yes, no overnight stays.”

He said this language is typical in variances, as the ZBA has never wanted to give people the chance to make space in a garage or a carriage house be an additional living unit.

“There are two building permits on file: one for the house and another for the garage,” he continued. “I always had permission to finish the space above my garage as approved by the zoning board with a half bath. My certificate of occupancy for both house and garage were issued in March 2015. If the bath was not allowed, I would never have received a certificate of occupancy.”

As for putting in the lines, Moore said, “I did not have plumbing done after I moved in, as you need a street opening permit as well as a permit for the water. This would prove exceptionally difficult, considering the sewer connection is in the alley, and the water connection is on South Franklin. Sewer was connected in December 2014, and we had to open the street in February 2015 on South Franklin for water and natural gas. The city does inspections on all these items, as well as giving plumbing permits for water and sewer connections.”

After Dawson wrote to Senior Planner Susan Barden, she emailed him, “William Moore has submitted an area variance application to modify his previously approved variance that permitted finished/habitable space in the detached garage. The current application is to permit a home occupation in the approved space. The city’s zoning ordinance permits home occupations within the principal structure and not in an accessory structure. Please be aware that the condition of the prior approval states, ‘No kitchen or bath facilities, or any overnight stays will be permitted in the finished space in the accessory structure.’ The approved plan was to have a half bath with a toilet and sink.”

At the Jan. 25 meeting, Kaplan took up the issue of the bath. He said that having a half-bath was within the scope of the conversations the board had previously had about the project.

“Our mistake was in not saying ‘bathing facilities’ but just ‘bath,’” he said.

In other words, the variance did not permit a full bathroom containing a tub and shower, but a half-bath, with just toilet and sink, would be allowed for the workers in the home office. Kaplan said the application should be corrected to make this clear.

Assistant City Attorney Tony Izzo reminded the board that any application of Moore’s must be sent through the same procedure as for any other applicant.

Board member James Helicke asked planning staff if there were other instances in Saratoga Springs of such home offices in accessory buildings.

“We permitted a certified public accountant, I remember,” Barden said. “I’ll do some research to see if there are more cases.”

Dawson wrote, “Mr. Moore created this situation and grew out of space, and should go back to renting or leasing adequate, legal space offsite from which to operate his business, just as any other company would have to do. That is the remedy to this situation, not special treatment from the city officials to remedy a situation he created by disregarding conditions imposed by the board.”

During the public hearing for Moore’s application, attorney Andy Brick of Donald Zee spoke for Dawson. The lawyer said that Moore ought to be seeking a use variance for the property, not an area variance.

“Home occupation must take place in a dwelling,” Brick cited. “The board should reject this application, and Mr. Moore should resubmit it as a use variance, which would need a State Environmental Quality Review Act process.”

Other neighbors of Moore’s spoke during the hearing, mostly in favor of the home office usage.

Maureen Curtin of 224 Grand Ave. said she thought the use of the garage space was legitimate. She did object to Moore’s application, classifying the neighborhood as largely commercial.

“The neighborhood is 74 percent residential,” she said.

Frank Capone of 119 Grand Ave. said Moore had dramatically enhanced the home on Franklin Street. Jack McKeever of 120 Grand Ave. agreed.

The ZBA then discussed what would happen if Moore’s business expanded; while Steer persisted that a home occupation wasn’t allowed in an accessory structure.

Dawson wrote, “Clearly, this violation is an abuse of power and a disregard of the authority of the board that Mr. Moore chairs. If this were any other resident, the remedy would be fines from the date of violation until the disconnection; the same should hold true here. No accommodation should be made by the ZBA to remove conditions they required because the chairman disregarded them. Additionally, I feel he should be removed from the board.”

Izzo said he would review the applicable code and cases, and write a brief for the board.

The public hearing will remain open until the next ZBA meeting, Feb. 8 at 7 p.m.